Fleeting expletives, foolish nonsense, and some other reflections

In a culture where daily exchanges are often saturated with expletives, a culture where a four-year-old can hear more "bad words" on a pre-kindergarten playground than in a whole day of watching TV, the U.S. government has a regulatory agency, the Federal Communications Commission, which makes it its business to police the broadcast airwaves for expletives. The Supreme Court recently held that the FCC's fining of Fox in connection with the broadcast of "fleeting expletives" does not represent an "arbitrary and capricious" exercise of agency authority.

Some Supreme Court cases are important; many others are not very important, except for the parties immediately concerned; and some cases are just foolish nonsense. The fleeting expletives case is in the last category. It is a largely pointless case about a pointless, irrational, and probably unconstitutional policy (the constitutionality of the policy was not passed on by the Supreme Court in its recent decision, which dealt solely with the question of whether the agency had acted unlawfully). That time and resources were expended in adjudicating this nonsense is a travesty. The FCC's indecency policy is irrational and should be removed from the books.

This is partly by way of prelude to a comment on the recent news that Justice David Souter is retiring from the Court. I remember when George H.W. Bush nominated him. No one outside a small group of legal scholars knew much about him. No one imagined he would turn out to be the kind of justice he has been. Does his replacement matter? Yes, but probably not quite as much as many people think. Elaboration of the reasons for my saying that will have to be left for another day, but I can offer a hint of the reason: the importance of the Supreme Court is usually exaggerated. What?!! What about Bush v. Gore? Roe v. Wade? U.S. v. Nixon? Boumediene v. Bush? Brown v. Bd. of Education? Etc. What about the entire period of the Warren Court? Good questions. Re-read what I said: "importance is usually exaggerated" does not equal "unimportant." Sorry, that's all the elaborating I have time for right now.